Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.

November 28, 2012

A new book from Eric Heinze, Queen Mary, University of London. Here is the description from the publisher's website.

The
Concept of Injustice challenges traditional Western justice
theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and
Rawls have subordinated the idea of injustice to the idea of justice. Misled by
the word’s etymology, political theorists have assumed injustice to be the
sheer, logical opposite of justice.

Heinze summons ancient and early
modern texts, philosophical and literary, with special attention to
Shakespeare, to argue that injustice is not primarily the negation, failure or
absence of justice. It is the constant product of regimes and norms of justice.
Justice is not always the cure for injustice, and is often its cause.

Eric Heinze is
Professor of Law and Humanities at Queen Mary, University of London. His most
recent publications on legal theory have appeared in Oxford Journal of Legal
Studies, Ratio Juris, International Journal of Law in Context, Legal Studies,
Journal of Social & Legal Studies, Canadian Journal of Law and
Jurisprudence, Law & Critique, Law & Literature, and Law &
Humanities.

Below is a description of the book's contents from the publisher's website.

While nineteenth-century literary scholars have long been interested in women's agency in the context of their legal status as objects, Curious Subjects makes the striking and original argument that what we find at the intersection between women subjects (who choose and enter into contracts) and women objects (owned and defined by fathers, husbands, and the law) is curiosity. Women protagonists in the novel are always both curiosities: strange objects worthy of our interest and actors who are themselves actively curious--relentless askers of questions, even (and perhaps especially) when they are commanded to be content and passive. What kinds of curiosity are possible and desirable, and what different kinds of knowledge do they yield? What sort of subject asks questions, seeks, chooses? Can a curious woman turn her curiosity on herself?" Curious Subjects takes seriously the persuasive force of the novel as a form that intervenes in our sense of what women want to know and how they can and should choose to act on that knowledge. And it shows an astonishingly wide and subtly various range of answers to these questions in the British novel, which far from simply punishing women for their curiosity, theorized it, shaped it, and reworked it to give us characters as different as Alice in Wonderland and Dorothea Brooke, Clarissa Harlowe and Louisa Gradgrind. Schor's study provides thought-provoking new readings of the most canonical novels of the nineteenth century--
Hard Times, Bleak House, Vanity Fair, Daniel Deronda, among others--and pushes well beyond commonplace historicist accounts of British culture in the period as a monolithic ideological formation. It will interest scholars of law and literature, narratology, and feminist theory as well as literary history more generally.

Thanks to Simon Stern of the University of Toronto Faculty of Law and Department of English for alerting me to this title.

Alison L. LaCrois, University of Chicago Law School, has published The Lawyer's Library in the Early American Republic in Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds., Oxford University Press, 2013).

This essay appears in a volume titled Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds.) (forthcoming, Oxford University Press, 2013). The essay explores the role that fiction played in the early republican project of building American nationhood. Many eighteenth- and nineteenth-century American statesmen and jurists – including such prominent thinkers as John Adams, Thomas Jefferson, John Marshall, and Joseph Story – were avid readers of fiction. The vast majority of the novels they read were written by English authors; moreover, many of those authors were women. For example, among Marshall’s surviving papers is a letter in which he chided Story for not including Jane Austen among the great novelists that Story listed in an 1826 address to Harvard’s Phi Beta Kappa chapter. Story had, however, cited Maria Edgeworth, Fanny Burney, and Ann Radcliffe in his address, and his son later recalled that his father had enjoyed Austen’s novels. “This is emphatically the age of reading,” Story told his Phi Beta Kappa audience. And, he added, “[m]an no longer aspires to an exclusive dominion in authorship.” For founding-era thinkers such as Adams and Jefferson, novel-reading provided a way for Americans to participate in transatlantic culture and to hone a republican moral sensibility. For the early-nineteenth-century jurists Marshall and Story, fiction offered an opportunity to engage with emotions such as sympathy and to participate in a public sphere that brought men and women together, as both authors and readers, in a conversation that connected politics, law, and literary culture. These producers of legal theory were also consumers of fiction, gentlemen of letters who immersed themselves in female novelists’ work not as a means of escape, but because those novels offered insights into what they regarded as crucial political questions of individual sentiment and national character.

Angela Harris's article in this symposium makes a valuable contribution to our understanding of hyper-incarceration. She argues, quite persuasively, that the term “gender violence” should be understood broadly to include men’s individual and structural violence against other men. She then considers what we ought to do about the incredible increase in incarceration, mostly of racial minority men, over the past 40 years. She terms this “mass incarceration” and argues that it is best dealt with by a shift from “restorative justice” to “transformative justice.” Whereas restorative justice emphasizes bringing together various elements of the community to repair the harm done by a crime, transformative justice goes further by emphasizing the racist and heteropatriarchal forces leading to the crime and preventing the healing of both the harm doer and communities.

It is hard to criticize Angela Harris. She is, after all, a founder of critical race theory and critical race feminism. Her article in this symposium demonstrates the depth of her insights and clarity of her expression. Nonetheless, I want to challenge Harris on one point and extend her analysis on another. First, for reasons I will explain, I believe it is crucial for scholars to start referring to so-called “mass incarceration” as “hyper-incarceration.” Second, I want to extend Harris's analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire.
To establish those arguments, this essay proceeds as follows. Part I explains the importance of the term “hyper-incarceration.” Part II defines a multidimensional masculinities approach to the relationships between identities, culture, and law. Part III uses an analysis of The Wire to argue that identity theorists should pay greater attention to capitalism. Part IV concludes that addressing hyper-incarceration requires simultaneously reducing the stigma attached to racial minority men and rebuilding economic structures in the inner-city.

November 23, 2012

The Hollywood Reporter brings us its choices for the top 10 legal disclaimers offered up by the movies. Ok, they're not for real. Well, some of them aren't for real. I think. (Is the X-Files one legit?) But, they're amusing to contemplate.

Following the
success of the last critical race theory conference held at Yale in 2009, Yale
Law School is proud to host the Critical Race Theory: From the Academy to
the Community conference on Friday, February 8, 2013 and Saturday, February
9, 2013. The conference is sponsored by the Zelia & Oscar Ruebhausen
and Debevoise & Plimpton Student Fund at Yale Law School, the American
Studies Department, the Public Humanities Initiative, and La Casa Cultural at
Yale College.

The conference
will convene scholars, legal practitioners, and community leaders to examine
the ways in which critical race theory can be applied to scholarly work, legal
practice, social justice advocacy and community based movements. Confirmed
speakers include Devon Carbado, Sumi Cho, Kimberlé Crenshaw, Lani Guinier,
Cheryl Harris, Tanya Hernandez, Charles Lawrence, Gary Peller, and Gerald
Torres.

In 2009, Yale
Law School hosted a highly successful conference that explored the insights of
critical race theory, as applied to immigration law. We look forward to
continuing these conversations and exploring the role of CRT in other contexts
at this February’s conference.

This article discusses the biligualistic legal system in Macau. The discussion begins with the outline of the history of the Macanese bilingualism. The author then examines the crucial distinction between the language in the law and the law in the language. By analogy to European Community and other bilingual legal systems, this article identities the characteristic of Macanese mulitlingualism. This article concludes with suggestions about a new approach and the role of universities in resolving the matter.

This essay uncovers a pattern of gendering in Law and Literature research that has contributed to limited understandings of the disciplines, taken singly, as well as to the projection of a heteronormative script on their relations to one another. This includes the troping of literature as feminine and that of law as masculine, and the emplotment of their relationship as that of an initially antagonistic yet ultimately satisfying heterosexual romance. Accordingly, actual forms of discrimination towards women are confused with contradictory images of a feminized literature as an empathetic, eloquent and morally superior woman. This idealized image of literature is figured as initially suffering under the regime of rationalistic, masculinized law but then reforming ‘him’ through the power of love. To posit law as a man and literature as a woman is to elide their similarities and reify their differences. After assembling evidence of gendering in US American Law and Literature work and to a lesser degree in British critical jurisprudence, the essay outlines historical reasons for why it is problematic to think of literature as morally uplifting and feminine and law as ‘brutish’ and masculine. Instances of ethical and contingent applications of law speak against any monolithic narrative that suggests that literature is inherently more morally conscious. Literature has proven to be a privileged forum for doing the police work of enforcing the gender binary as well as for maintaining other social divisions. In closing, the essay describes strategies to degender Law and Literature in an effort to move the conversation forward.

The nature is known for the coexistence of opposites — latent and patent. Ugliness is shrouded by beauty, cruelty shrouded by kindness, love concealing hatred and life concealing death. Life and death are two ends of a scale. It is unfair to consider life as a respectful end and death as a disrespectful one. Both are same. Probably because of this, in Greek language, the two components — EU and THANATONA — have given birth to euthanasia. The term appears to sound highly controversial, bitter and condemned by a major chunk of the human race throughout the globe. Passions rise high, emotions explode and acrimonious debates alarm the serenity of humanity when the word ‘mercy killing’ is uttered. Yes, the subject is controversial because it is interesting and intriguing too. Interesting as it envelops multiple facets of social, economic and moral and ethical life, and intriguing because of its subtle clash with religion and faith trends. There is an adage that “a thing ceases to be a thing of interest when it ceases to be a thing of controversy.” It is true for ‘mercy killing.

The water-law doctrine of prior appropriation is today widely misunderstood, largely due to ignorance of the social and legal context in which it arose. It has become associated with a set of values -- the preference for private over common property, the privatization of the public domain, the facilitation of markets in natural resources -- that have little to do with the ideology behind the decision or how contemporaries saw it. Analysis of the available historical evidence makes it quite clear not only that the doctrine of appropriation as developed in nineteenth-century Colorado was viewed at the time as striking a blow at private property in order to advance distributive justice, but also that it had that very effect as its central goal.While the primary purpose of this book is to challenge the received wisdom regarding the ideology of western water law, relying primarily on an examination of contemporary sources, the significance of the argument goes beyond revision of the historical record for its own sake. Historians and theoreticians of property rights have tended to agree that the primary concern driving the rejection of riparian doctrine in favor of appropriation in the western United States was economic growth, part of that nineteenth-century “release of individual creative energy” by American law, to use Willard Hurst’s phrase or the common law’s characteristic tendency toward efficiency, as some economic analysts of the law would have it. The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge these consensus views regarding property law and American legal history in general. In doing so, they raise the question as to whether considerations of distributive justice have been given their due in study of these fields. Given the value American legal culture places on arguments from past practice and precedent, they also challenge current paradigms of natural-resource law.

Although copyright is a subject of intense debate, there is little empirical evidence on the effects of stronger rights on the price of intellectual assets. This paper exploits a differential increase in the length of copyright in favor of books by dead authors under the 1814 U.K. Copyright Act to investigate the causal effects of longer copyright terms on price. Difference-in-differences analyses, which compare the price of new editions of books by dead and living authors before and after 1814, indicate an 8 percent increase in price for each additional year of copyright, and an elasticity of price with respect to longer copyright of 0.9. Results are robust to controlling for book age, author, and time fixed effects, as well as genre fixed effects and controls for literary quality. They are also robust to excluding books by famous authors who died after 1814, and to excluding books by recently deceased authors. Placebo regressions reveal no significant effects for books by dead authors that did not benefit from longer copyrights. Complementary analyses confirm that books become cheaper as they approach the end of copyright.

Law and literature is the study of the utilities of the reciprocal ties between the two domains. Classic approaches divide the field into two main patterns of study. One is the literary approach to law, i.e. the study of law as literature, which primarily implements literary theory and criticism in legal texts. The second is law in literature, which investigates literary expressions of law and the various ways law is depicted in literature.Of late, a new paradigm labeled “literature alongside law” has been suggested. This paradigm neither puts the emphasis on one field nor utilizes one for the service of the other. Rather, it investigates both fields, viewed one beside the other, as interwoven cultural expressions of a complex fabric of the human condition. This duality exposes the various ties infrequently noted within the confines of the former classic approaches. This paradigm is closely tied and evoked by an old yet interesting source of scholarly inspiration: the Jewish rabbinic combination of Halacha and Aggadah. They can be appreciated as the religious parallel model of their paradigm and of contemporary law and literature scholarship as a whole.Halacha is the body of religious legal norms and bending interpretations as expounded by Jewish Rabbis. Aggadah is the body of narratives, stories, myths, advice, morals and parables transmitted traditionally alongside Halacha. Rabbis, as the early scholars of law and literature, pondered the nature of this duality and the prospective worth of its inseparability. In comparison, Christianity and Canon law seem to reject this model and any equal treatment of literature alongside law in its central works. Due to various historical and theological reasons, this duality was denounced. While the Jewish model has been widely investigated, no similar attempts have been made as regards the Christian model.This paper seeks to present these two religious models within the confines of law and literature scholarship, to compare both and, especially, to ponder possible meanings for the repulsing tension amid law and literature in the Christian model. The article concludes that law and literature is a two-sided coin, much like the two religious models. One seeks better truth in the constant dialogue of law and literature. The other preserves its truth in the polar and repulsing tension of law and literature. These two models ought to be equally valued for law and literature scholarship.

This essay examines two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law from a limited set of first principles such as self-preservation and sociability, one faced the problem of distinguishing immutable natural precepts from rules that arose only to address passing issues in a specific territory.Natural lawyers and Mosaic legalists did not use the same techniques for separating eternal and transient precepts. Each had its own “rules of recognition” (to borrow a helpful modern concept). My essay compares natural lawyers’ and Mosaic legalists’ rules of recognition, their ways of telling immutable from transitory precepts. In this, it goes against the dominant tendency of modern scholarship to approach the Mosaic legalists and natural lawyers separately rather than in tandem. Reading the two in unison highlights how the projects faced common intellectual challenges. In particular, both natural lawyers and Mosaic legalists used stadial theories of historical change and both implied that immutable law should be convenient under present circumstances. Both used temporally- and contextually-sensitive categories to locate an “eternal” law. But these emphases, if pushed too far, threatened the natural lawyers’ and Mosaic legalists’ enterprise, so both groups developed stabilizing conventions.The rules of recognition mattered greatly as controversialists deployed natural and Mosaic law in fights over political oaths and allegiance, usury, sabbatarianism, church governance, and a wide range of other issues. Over and again, early modern actors asked the perennial question: What was God, through scripture and nature, commanding us to do? The Mosaic legalists’ and Protestant natural lawyers’ rules of recognition helped answer this most pressing of questions.

This article explores definitions of “adhesion” contracts and discusses their dangers, particularly online, where they are most susceptible to abuse. It begins with foundational contract principles, specifically the transition from feudalism to freedom of contract and the dramatic shift in the meaning of “freedom of contract” over time. This article proceeds through the history of adhesion contracting, from early posted notices and over a century of judicial fracas about whether and when to enforce contract terms printed on tickets, bills of lading, receipts, and so forth. The discussion then continues with the developments of the twentieth century, marked by the promulgation of the Uniform Commercial Code (“UCC”) and Restatement (Second) of Contracts, the consumer protection efforts of the 1960s and 1970s, and the erosion of the unconscionability doctrine and other boundaries in which adhesion contracts were contained. The last section considers the consequences of the resulting imbalance and the need to rethink the enforcement of online contracts. We conclude that the claim of economic benefits has been allowed to swallow the whole of contract values and that some return to balance is essential.

November 8, 2012

Google has devoted a Google Doodle to you! The Christian Science Monitor discusses the five best Bram Stoker novel film adaptations here. More about Mr. Stoker himself here from the Monitor, a discussion of his effect on pop culture here in the Washington Post. Vampires have come of age: check out this True Blood site here.

A short bibliography of materials on vampires and law:

Bradney, Anthony, "The Morally Ambiguous Crowd": The Image of a Large Law Firm in "Angel," 56 Northern Ireland Legal Quarterly 21 (2005).

Owen, A. Susan, Vampires, Postmodernity, and Postfeminism: Buffy the Vampire Slayer, 27 Journal of Popular Film and Television 24 (1999).

2012 marks the 80th anniversary of Donoghue v Stevenson, a case that is frequently cited as the starting-point for a genealogy of negligence. This genealogy starts with the figure of the neighbor, from which, as Jane Stapleton eloquently describes, a “golden thread” of vulnerability runs into the present (Stapleton 2004, 135). This essay examines the harms made visible and invisible through the neighbour figure, and compares the law’s framework to Virginia Woolf’s subtle re-imagining and theorisation of responsibility in her novel Mrs Dalloway (1925). I argue that Woolf critiques and supplements the law’s representations of suffering. Woolf was interested in interpreting harms using a framework of neighbourly responsibility, but was also critical of the kinds of proximities recognised by society. Woolf made new harms visible within a framework of proximity: in this way, we might think of Woolf’s work as theorizing a feminist aesthetic of justice, and as providing an alternate genealogy of responsibility to Donoghue v Stevenson.

November 5, 2012

Oxford
University Press is thrilled to announce the recent publication of Family
Money: Property, Race, and Literature in the Nineteenth Century by
University of Kentucky Professor of English Jeffory A. Clymer. The inaugural
volume in the new Oxford Studies in American Literary History series, Family Money combines nuanced literary
interpretations with significant legal cases to reveal a shared preoccupation
with the financial quandaries emerging from interracial sexuality in
nineteenth-century America. At stake, Clymer shows, were the very notions of
family and the long-term distribution of wealth in the United States. For
more information or to order, please see Oxford
University Press, Amazon.com, www.bn.com,
or your local bookstore.

Jeffory Clymer explores the histories of formerly enslaved
women who tried to claiminheritances left to them by deceased owners; the
household traumas of mixed-race slaves; post-Emancipation calls for
reparations; and the economic fallout from anti-miscegenation marriage
laws. Authors ranging from Nathaniel Hawthorne, Frank Webb, and
Harriet Beecher Stowe to Charles Chesnutt and Lydia Maria Child recognized
that intimate interracial relationships took myriad forms—sexual, marital,
coercive, familial, pleasurable, and painful—often
simultaneously. Their fiction confirms that the consequences of
these relationships for nineteenth-century Americans meant thinking about
more than the legal structure of racial identity. The populace was
plagued with a host of vexing, interrelated questions: Who could
count as family (and when)? Who could own property (and when), and how was
racial difference imagined? Throughout the book, Clymer’s
arguments are bolstered by salient examples from U.S. legal history, such as
the law of partus sequitur ventrem and cases like Gary
v. Stevenson and State v. Mann.

A
searching cultural history that draws on law, literature, and
economics, Family Money reveals the powerful effects
interracial sexuality had on life in nineteenth-century America and its
dramatic long-term consequences.

The New York Times brings us the captain of H.M.S. Bounty's decision to leave port in anticipation of an oncoming hurricane, in retrospect an unfortunate decision, and the subsequent rescue of its sailors. Coast Guard members found fourteen of fifteen of the crew alive in turbulent Atlantic waters, but have abandoned the search for Captain Robin Walbridge. Here, a link to video of some of the rescue of the Bounty crew. More coverage of the Bounty sinking, including a report that the Coast Guard will investigate Captain Walbridge's decision to set sail, here from the Los Angeles Times. The seaman who died, Claudene Christian, reportedly a descendant of Fletcher Christian, the leader of the Bounty mutiny, sent a message to a friend before the replica Bounty set sail indicating she was uneasy both about the condition of the ship and about the decision to leave port.

The Bounty was built for use in the original film Mutiny on the Bounty, starring Marlon Brando (1962). It has been featured in other films as well, including the Pirates of the Caribbean series (as "The Black Pearl."). More here from the Christian Science Monitor.

What follows at pages 69-108 is the second installment of Mr. District Attorney on the Job (1941) – the only book of adventures of the fictional prosecutor who starred on radio from the late 1930s to the early 1950s. (He was known only as “Mr. District Attorney” until 1952, when he also became “Paul Garrett.”) He was tremendously popular with the listening public in those days, as leading modern scholars of law and popular culture have noted. Yet, unlike the heroes of some other golden-age radio dramas – Perry Mason, for example, or Joe Friday of Dragnet – Mr. District Attorney did not successfully transition to television. Moreover, in the years since television superseded radio, other fictional lawyers have come to the fore on-screen – Arnie Becker (of L.A. Law), Patty Hewes (of Damages), Charles Kingsfield (of The Paper Chase), Ben Matlock, Ally McBeal, Jack McCoy (of Law & Order), Horace Rumpole (of the Bailey), and the like. Thus, having survived and not thrived for only a few years on television, Mr. District Attorney has been largely forgotten and is today no more than a radio fossil. His place in the minds of lawyers has been taken over by the moderns. Or has it? Who are, really, the fictional television lawyers whose presence in our legal culture is so significant that it translates into appearances in the works of judges, practitioners, and legal scholars? The numbers presented on the following pages are not sufficient on their own to support unassailable answers to those questions, but they might be enough to prompt some preliminary thoughts. [NOTE: For a copy of the story referred to in this article (pages 69-108), please contact the author.]